POON TING CHAU v. WONG KWOK CHI AND ANOTHER

HCMP5314/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.5314 OF 2002

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J U D G M E N T

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1. On 27 September 2004, I gave a judgment in relation to an application for joinder and I also directed that there should be a hearing for directions today.

2. Before me today, there are two applications by Mr Poon against his wife Agnes Yam and his brother-in-law Wong Kwok Chi, whom I will call the 2^nd defendant and the 1^st defendant respectively.  He sought specific discovery in relation to large number of documents going back to 1988.  It was explained to me during the hearing, that the reality of the transaction was not quite what I had said in my judgment of 27 September, but is as follows : that the plaintiff transferred the property to the 2^nd defendant in 1987.  Then in 1988, the 2^nd defendant transferred the property to Mr Wong, the 1^st defendant.  Then in the year 2002, the 1^st defendant transferred the property back to the 2^nd defendant.

3. At the time when this proceedings was brought by Mr Poon, the property was already registered in the name of the 2^nd defendant, not registered in the name of the 1^st defendant.  Therefore, it seems to me that it is a very strange complaint by the plaintiff against the 1^st defendant who is no longer registered as the owner of the property.  There may be all kinds of unhappiness by Mr Poon against the involvement of Mr Wong and one of the matters that he mentioned at the hearing is that the property is now subject to a trust and that he cannot sell the property and he had been so advised by lawyers. 

4. I have the grievous doubt that, as the 1^st defendant is no longer registered as the owner of the property, that if the 2^nd defendant wanted, why the property could not be sold by her and the plaintiff in the open market without any problem.  But be that as it may, and having regard to my serious doubt as to the viability of this proceedings brought by Mr Poon against the 1^st defendant and the 2^nd defendant, I direct that this proceedings should be converted into proceedings by way of writ of summons :

(1)   by it being converted to writ;

(2)   the amended writ should show the 1^st defendant as Mr Wong and the 2^nd defendant as the wife;

(3)   that the plaintiff must serve on the 1^st and 2^nd defendants within 28 days a proper Statement of Claim;

(4)   the 1^st and 2^nd defendants to serve their defence to the Statement of Claim within 28 days of receipt of the Statement of Claim;

(5)   the plaintiff to serve reply within 28 days after the respective defence of the 1^st and 2^nd defendants;

(6)   the Summons of Discovery is adjourned sine die and not to be restored until after discovery had taken place;

(7)   costs of today be costs in the cause.